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27 February 2012

The Right to Privacy through the Lens of Content Law

This post is from a series of posts dealing with basic Indian content laws. Other posts from the series can be accessed at Content101.

One of the main content law concerns when it comes to publishing any biographical material about others is that any publication may have the effect of violating their privacy. Under Indian law, the right to privacy is not well-defined. Nonetheless, it has been recognised under Article 21 of the Constitution of India which deals with the ‘right to life and liberty’— given that Article 21 lies in Part III of the Constitution, the right to privacy is effectively a fundamental right.

Apart from Constitution, several statutes also contain disparate provisions relating to privacy; they include the Information Technology Act, the Indian Penal Code, and the Juvenile Justice Act. In addition to this, the right to privacy is also recognised under tort law.

If one were to consider the law of privacy in broad strokes, with reference to the decisions of the Supreme Court in the cases of R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632, and Mr. X v. Hospital Z, (1999) 8 SCC 296, it would emerge that under Indian law, the right to privacy is primarily treated as the right to be ‘let alone’. Whether or not a person’s privacy has been invaded depends not so much on whether the information published is truthful or not, or whether it is laudatory or critical — the determining factor is the nature of the information which is published. The Supreme Court has ruled in no uncertain terms that ‘nobody can publish anything regarding the private matters of a citizen including his/her family, marriage, procreation, motherhood, child-bearing and education without his/her consent’. The publication of private information without the consent of the person to whom it pertains would amount to a violation of person's right to privacy, and would lead to liability in an action for damages.

However, these general rules are subject to several caveats: Firstly, there appears to be no posthumous right to privacy recognised under Indian tort law. Secondly, there exists a hierarchy: the general public has the ‘greatest’ right to privacy, public figures and those who force themselves into the public eye do not enjoy as ‘strong’ a right, and public officials can claim virtually no right to privacy as far as their public acts are concerned.

Thus, although the right to privacy has been firmly established, the threshold at which privacy is considered to have been violated is much lower in the cases of persons who either voluntarily thrust themselves into the controversies or who are public figures. As far as public figures are concerned, although they do have a right to privacy, it has been held in the case of Khushwant Singh v. Maneka Gandhi, AIR2002Delhi58, (which dealt with both defamation and privacy) that “People have a right to hold a particular view and express freely on the matter of public interest. There is no doubt that even what may be the private lives of public figures become mattes of public interest.”

And as far as public officials are concerned, it was held in the case of Raja and M.A. Parameswari v. P. Srinivasan and Ors., AIR2010Mad77, that ‘the persons holding public offices must not be thin-skinned with reference to the comments made on them and even where they know that the observations are undeserved and unjust, they must bear with them and submit to be misunderstood for a time. .... In Time, Inc v. Hill 385 US 374 it was pointed out that in the case of public officials, insofar as their official function is involved, they are substantially without a right to privacy and factual error and content defamatory of official reputation or both, are insufficient for the award of damages for false statements unless actual malice knowledge that the statements are false or reckless disregard of the truth is alleged and proved. In a democratic set up a close and microscopic examination of private lives of public men is the natural consequence of holding of public offices. What is good for a private citizen who does not come within the public gaze may not be true of a person holding public office. What a person holding public office does within the four walls of his house does not totally remain a private matter. We agree .... that the scrutiny of public figures by media should not also reach a stage where it amounts to harassment to the public figures and their family members and they must be permitted to live and lead their life in peace. But the public gaze cannot be avoided which is a necessary corollary of their holding public offices’.

As such, the right to privacy is not an absolute right which all persons enjoy equally. Further, an extremely strong defence to the publication of private information is that the person to whom it pertains has consented to its publication. However, ‘consent’ is not an unassailable defence. This may be inferred from the case of Phoolan Devi v. Shekhar Kapoor, 1995(32)DRJ142, where the Delhi High Court held that the grant of consent from the subject of a film for the making of the film ‘does not give a license to the defendants to make a film in total disregard to [the subject’s] right to privacy’.

It is also pertinent to note that the publication of information which is already in the public domain may not constitute a violation of the right to privacy even it is an invasion of privacy, unless such publication is otherwise prohibited by a statute. For example, Section 21(1) of the Juvenile Justice Act prohibits the publication of the name, etc., of any juvenile involved in any proceeding under the Juvenile Justice Act, while Section 21(2) of the same Act stipulates that a person who violates the mandate of Section 21(1) ‘shall be punishable with fine, which may extend to one thousand rupees’.

The Indian Penal Code (i.e. the ‘IPC’) also has provisions relating to privacy: Section 228A of the IPC (prior to the amendment of the statute) prohibited the unauthorised disclosure of the identities of the victims of certain sexual offences, specifically:

376: Rape

376A: Intercourse by a man with his wife during separation

376B: Intercourse by public servant with woman in his custody

376C: Intercourse by superintendent of jail, remand home, etc.

376D: Intercourse by any member of the management or staff of a hospital with any woman in that hospital

The Criminal Law Amendment Act, 2013, amended Section 228A of the IPC to prohibit the unauthorised disclosure of the identities of the victims of the following sexual offences:

376: Rape

376A: Punishment for causing death or resulting in persistent vegetative state of victim

376B: Sexual intercourse by husband upon his wife during separation

376C: Sexual intercourse by a person in authority

376D: Gang rape

376E: Punishment for repeat offenders

What is interesting is that this list does not include the controversial Section 377 of the IPC which criminalises supposedly 'unnatural offences' which have been defined by that Section as voluntary 'carnal intercourse against the order of nature with any man, woman or animal'. Section 228A, in its entirety, reads as follows:

(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.(2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is—
(a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or
(b) by, or with the authorisation in writing of, the victim; or
(c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim:
Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation.
Explanation.—For the purposes of this sub-section, "recognised welfare institution or organisation" means a social welfare institution or organisation recognised in this behalf by the Central or State Government.(3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub-section (1) without the previous permission of such court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine,
Explanation.—The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.

Courts have also shown a tendency to refrain from revealing, even in judicial decisions, the identity of the victims of rape, and in the case of State of Punjab v. Ramdev Singh, AIR 2004 SC 1290, the Supreme Court stated:

Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been committed can be punished. True it is, the restriction does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimisation or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court. High Court or lower Court, the name of the victim should not be indicated, we have chosen to describe her as 'victim' in the judgment.

Section 228A is, however, not the only Section of the IPC which is related to privacy: Section 509 of the IPC deals with words, gestures or acts intended to insult the modesty of a woman. Even though it is generally not considered to be a ‘privacy law’, it is not inconceivable that it could be interpreted in a manner which would make it apply to invasions of privacy in certain circumstances. In pertinent part, this Section states: ‘Whoever, (intending to insult the modesty of any woman)…. intrudes upon the privacy of any woman shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both’. Further, Section 23 of the Protection of Children from Sexual Offences Act, 2012 prohibits the disclosure of the identities of children.

The Information Technology Act (i.e. the 'IT Act') is another statute which contains provisions that pertain to privacy. Section 66E of the IT Act states that ‘whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both’. The statute also stipulates a penalty for the breach of confidentiality and privacy (in Section 72 which has no direct connection to Section 66E). Under this Section, (i.e. Section 72 of the IT Act), persons who secure access to certain data in pursuance of the powers conferred by the Act are generally prohibited from disclosing the data; disclosure makes such persons liable to be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

Further, under the 2011 IT Act Rules(analysed here), sensitive personal data or information pertaining to persons may not be published by any body corporate or other person who collects such information on its behalf. In addition to this, intermediaries are required to notify users that they may not upload content online which would be invasive of another person's privacy.

Thus, there is very little doubt that the law both recognises and protects the privacy of persons. However, it is only if the violation of a person’s privacy is challenged under a statute, and found to have occurred in a manner contemplated by the statute that the law is (relatively) clear. In other cases, where reliance is placed on tort law and constitutional law, the law is far more fluid. Fundamental principles have been established but a determination of whether or not privacy has been violated appears to be arrived at on a case-by-case basis.

This post is by Nandita Saikia and was first published at Indian Copyright. Its scope is limited to attempting to introduce those privacy laws which deal with determining what kind of content may be published; it does not deal with Section 8 of the Right to Information Act or the self-regulation codes to which broadcasters adhere. Also, it has been updated in 2013 after the passing of the Criminal Law (Amendment) Act, 2013.

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